Working Paper No. 11-40:
Lochner and Constitutional Continuity

Author(s):

Abstract:

Lochner v. New York and the
liberty of contract doctrine enunciated in that case have been denounced by
legal scholars from all points of the political spectrum for decades. So
perhaps the most surprising aspect of the history of the liberty of contract
doctrine is that modern Fourteenth Amendment jurisprudence is at least as much a
product of the Lochner line of cases as of the views of their Progressive
opponents. Progressive critics of Lochner
certainly emerged victorious on one very important issue—the Supreme Court no longer
engages in serious review of economic regulations under the Due Process
Clause. But despite the calumny heaped
on the due process liberty of contract decisions and the Supreme Court Justices
who wrote them, modern constitutional jurisprudence implicitly (and sometimes explicitly)
draws a great deal from pre-New Deal due process decisions rejecting novel
assertions of government power. This article is based on material published in
David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against
Progressive Reform (University of Chicago Press 2011).